impact of human rights act 1998

Question 1

impact of hra- what did section 1 bring

Answer 1

first 3 articles
Protection of Property

Right to Education

Right to free elections

Question 2

what is the case to back this

Answer 2

sunday times v uk

Question 3

what are the 3 purposes of the hra 1998

Answer 3

To ‘bring rights home’ as promised in the Labour manifesto. This was based on allowing UK citizens to challenge human rights issues in UK courts rather than having to go to the ECtHR

Establishing a ‘rights culture’ in the UK

Enabling UK courts to contribute to and help shape the ECtHR case law and decisions

Question 4

judicial decisions- what does section 2 state

Answer 4

Any court/ tribunal deciding a case under HRA must take into account all past judgements, decisions, declarations and opinions of the ECtHR

Question 5

judicial decisions-what does section 3 state

Answer 5

UK law should wherever possible be interpreted so it is compatible with the ECHR

Question 6

what 2 cases show there is conflict in how these sections of the HRA have been interpreted by the courts in England and Wales

Answer 6

R (Alconbury) v Secretary of State for the Environment (2001)

Kay v Lambeth (2006)

Question 7

what does the case of R (Alconbury) v Secretary of State for the Environment (2001) tell us

Answer 7

 house of lords held that UK courts should ‘‘in the absence of some special circumstances, follow any clear and consistent rulings of the ECtHR

Question 8

what does the case of Kay v Lambeth (2006) tell us

Answer 8

Where the court of appeal is faced with a house of lords precedent which is inconsistent with a decsision of the ECtHR, the court said here that it should follow domestic precedent and refer the case to appeal to the house of lords

So if a UK court is faced with conflicting domestic UK precedent (legal principle that courts should follow previous decisions in similar cases) & a decision of the ECtHR, it should follow domestic precedent and refer a case for appeal.

Question 9

judicial decisions- what does section 4 allow

Answer 9

allows UK courts to make a declaration of incompatibility when a UK act of parliament is not compatible with the ECHR
If a UK court is faced with conflicting UK Act of Parliament & an article of the ECHR, it should follow UK law and make a declaration under section 4.

Only Parliament can overrule UK legislation – courts cannot do this.

Question 10

can uk law make a declaration of incompatibility

Answer 10

yes! :)
your so clever

Question 11

what does making a declaration of incompatibility protect

Answer 11

UK parliamentary sovereignty (supremacy)

Question 12

what can parliament do after a deceleration of incompatibility is made

Answer 12

after a courts declaration parliament can decide whether to repeal (get rid of). Amend (change) the legislation or simply to do nothing and ignore court judgement

 if a change in law happens it only affects future cases- the decision in the case will not be change retrospectively

Question 13

what are 3 cases to back this

Answer 13

Bellinger v Bellinger (2003)
R (Anderson) v Secretary of State for the Home Dept (2002)
A and Others v Secretary of State for the Home Dept (2004)

Question 14

what happened in the Bellinger v Bellinger (2003) case (gen relevant)

Answer 14

court made a declaration of incompatibility under the Human Rights Act 1998 regarding the non-recognition of gender reassignment for the purposes of marriage.

Gender recognition act 2004

C was a transgender woman who wanted to marry a man

House of lords didn’t legally consider the marriage as UK law at the time did not recognise a change in gender

Question 17

impact of hra- what does section 6 state

Answer 17

it is unlawful for a public body to act in a way which is incompatible with the articles

this can be brought by an individual in a court or tribunal

 action can only be taken against a public body carrying out a public functions (not private business, companies, individuals need to be connected to gov)

Question 18

what type of relationship must this be

Answer 18

must be a vertical relationship (have more power in decision making e.g governemnt) between the individual and state

e.g gov departments (but not specific ministers), local authorities, chief constables, prison gpvernets, education, NHS 

 relations between private individuals are horizontal and not covered by HRA

Question 19

hra and uk legislation- what does section 10 give

Answer 19

Gives relevant government ministers power to amends any UK legislation that has been declared incompatible with ECHR, without having to go through the full parliamentary process

 

Question 20

hra and uk legislation- what does section 19 state

Answer 20

When parliament introduces a new law the relevant minister must make a statement of compatibility before second reading that is compatible with ECHR

Question 21

what can this gov minister state during their promotion of a bill through parliament

Answer 21

state it will be necessary to depart from (ignore) ECHR.

This power has mostly been used to relax or suspend Articles 5 & 6

This must be approved by parliamentary resolution

Question 22

remedies under hra- what does section 8 state

Answer 22

If actions of a public authority are unlawful, any remedy that is ‘just and appropriate’ should be applied by the court

This could mean damages (compensation) or an injunction.

Question 23

what is a case example of this

Answer 23

Metropolis Police Commissioner v DSD, NBV (2015)
Two female victims of aserial rapist awarded compensation as they said the police had not properly investigated their crimes.

Question 24

before 1998, what gave uk citizens protection

Answer 24

Magna Carta and under the Common Law.

Question 25

how can decisions of government departments be challenged

Answer 25

judicial review

Question 26

what is an example of an act of parliament created to express rights

Answer 26

Police and Criminal Evidence Act (PACE) 1984, which gives rights to suspects when they are detained by the police.

Question 27

what is devolution

Answer 27

power being passed to Scotland, Wales and Northern Ireland to make laws for themselves in certain areas

confirmed under:

Scotland Act 1998 (Scottish Parliament)

Government of Wales Act 2006 (Welsh Assembly)

Northern Ireland Act 1998 (Northern Irish Assembly)

Question 28

what is entrenchment

Answer 28

a procedure that makes an Act of Parliament very difficult to amend or repeal

Question 29

why is this basically impossible in uk law

Answer 29

parliamentary supremacy
 because you can’t bind a future parliament therefore you can’t prevent a future parliament from repealing a law

Question 30

what is the Independent Human Rights Act Review

Answer 30

government commission looking into the issues with the HRA

Question 31

what did this recently recommend

Answer 31

s.2 (court should ‘take into account’ past decisions of ECtHR) should be amended to clarify order of priority for UK courts to use when applying various types of laws, which should be:

UK legislation

Common law and other case law

ECtHR decisions